AFSCME Council 75, AFL-CIO v. Oregon Health Sciences University, AFL-CI

• Decision Date: 01 June 1988
• Docket Number: P,UP-155-85,AFL-CI
• Citation: 91 Or.App. 365,755 P.2d 141
• Parties: , 47 Ed. Law Rep. 330 AFSCME COUNCIL 75,etitioner, v. OREGON HEALTH SCIENCES UNIVERSITY and Executive Department, Labor Relations Division, State of Oregon, Respondents. ; CA A41658.
• Court: Oregon Court of Appeals

Page 141

755 P.2d 141

91 Or.App. 365, 47 Ed. Law Rep. 330

AFSCME COUNCIL 75, AFL-CIO, Petitioner, v. OREGON HEALTH SCIENCES UNIVERSITY and Executive Department Labor Relations Division, State of Oregon, Respondents.

UP-155-85; CA A41658.

Court of Appeals of Oregon.

Argued and Submitted July 22, 1987.

Decided June 1, 1988.

Henry H. Drummonds, Portland, argued the cause for petitioner. With him on the brief was Kulongoski, Durham, Drummonds & Colombo, Portland.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief was Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

NEWMAN, Judge.

The American Federation of State, County and Municipal Employees (AFSCME) petitions for review of a ruling of the Employment Relations Board (ERB) that Oregon Health Sciences University (OHSU) did not commit any unfair labor practices during and after a representation election between AFSCME and the Teamsters, the incumbent union. We affirm.

AFSCME accepts ERB's formal findings of fact. Before 1985, Teamsters Local 223 represented a bargaining unit of approximately 2200 employees at OHSU. On April 9, 1985, AFSCME filed a representation petition with ERB seeking status as the exclusive collective bargaining representative of that unit. On April 16, 1985, the Teamsters and OHSU, whose current contract was due to expire on June 30, 1985, reached a tentative agreement on a new contract. That agreement provided for an across-the-board five percent pay increase "effective July 1, 1985, or upon signing of the Agreement, whichever is later." The members ratified the agreement, but it was never signed because of the pending representation election. On September 4, 1985, the Board certified AFSCME as the exclusive representative of the OHSU bargaining unit.

During the election, the Teamsters campaigned on the theme that it could "guarantee" the wage increase, while AFSCME could only make promises. OHSU management confirmed in both written and oral statements that, if the Teamsters were chosen, the five percent wage increase would be effective July 1, 1985, and that, if AFSCME were elected, the contract would be subject to negotiation.

AFSCME objected to OHSU's statements and told the bargaining unit that, if elected, it would allow members to chose whether to accept the same contract and wage increase as the Teamsters had previously negotiated or to negotiate an entirely new contract. It attempted to get OHSU to issue a statement to that effect during the election period. OHSU, however, responded that it would "not engage in bargaining a contract with AFSCME (or any other union) unless it is the certified representative of State employes."

After AFSCME won, its members unanimously voted to seek the same contract as the Teamsters had negotiated. OHSU offered AFSCME a contract with the same substantive terms as the Teamsters contract but would not agree to a wage increase retroactive to July 1. The parties met only twice concerning the new contract and did not negotiate over any individual contract clauses. At the first meeting when OHSU reiterated that it would not agree to the retroactive pay increase, AFSCME proposed that it accept the Teamsters contract without waiving any of its rights to seek the retroactive wages either through contract grievance arbitration or through the filing of an unfair labor practice complaint. At the second meeting, on September 30, 1985, OHSU agreed to the second option and the parties signed a tentative agreement which provided for a five percent wage increase effective on the first day of the month in which the agreement was reached--September 1, 1985. On October 20, 1985, AFSCME's members ratified the agreement.

In December, 1985, AFSCME filed this unfair labor practice complaint, charging that OHSU violated ORS 243.672(1)(a), (b), (c), (e) and (h). ¹ In substance, AFSCME alleged that the tentative agreement between the Teamsters and OHSU, and OHSU's subsequent comments and memoranda, restrained employes in their support of AFSCME, improperly assisted the Teamsters and threatened to discriminate against the employes if they were to choose AFSCME over the Teamsters. ORS 243.672(1)(a), (b), and (c). It also alleged that, by refusing to offer the retroactive pay increase to its employes after they had chosen AFSCME, OHSU discriminated against its employes because of their choice of bargaining representative and engaged in bad faith bargaining. ORS 243.672(1)(a), (b), (c) and (e). ²

As relief, AFSCME asked that the Board order OHSU to cease and desist, in the future, from its "unlawful" pre-election campaign tactics. It did not seek to set aside the election. In addition, AFSCME requested that the employes be made whole for OHSU's "unlawful" discrimination by ERB's ordering OHSU to pay each employe in the bargaining unit the five percent wage increase retroactively for July and August. In the alternative, AFSCME asked that the Board order OHSU to bargain in good faith and to cease and desist from offering the bargaining unit less retroactive pay than it had offered to the bargaining unit when the Teamsters was the legal representative.

ERB dismissed all of AFSCME's charges. It identified as the key question whether OHSU was required by law to agree to the same contract, if requested by AFSCME, as it had previously negotiated with the Teamsters. ERB held that the employer had no such duty. It reasoned that it was well established in successorship law that a previous labor contract cannot be imposed on either a successor union or successor employer. NLRB v. Burns International Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); American Seating Company, 106 NLRB 250 (1953). It rejected AFSCME's argument that this case, where a successor union is attempting to bind the employer to terms agreed to with the predecessor union, is different from cases where the successor union was held not to be bound by the negotiated agreement.

Because OHSU could properly refuse to agree to the retroactive wage increase, ERB concluded that OHSU's pre-election statements were accurate statements of law and not unfair labor practices. It also held that, after the election, OHSU did not engage in bad faith bargaining or otherwise act unlawfully toward its employes by refusing AFSCME's demand for the retroactive wage increase. It noted that, because the parties only met twice and did not bargain over any substantive terms, there was an insufficient bargaining history from which it could find bad faith conduct.

AFSCME separately assigns as error ERB's dismissal of each of its unfair labor practice charges. It discusses the assignments together, however, and we shall do so as well. AFSCME first argues that ERB's conclusions are invalid because they are based on the premise that the OHSU-Teamsters agreement was reached before the onset of OHSU's legal obligation to cease bargaining. AFSCME argues that ERB applied an erroneous legal standard and that its factual finding was unsupported by substantial evidence.

AFSCME asserts that ERB made an error of law when it stated:

"The traditional rule of the NLRB, like our rule adopted in Oregon School Employes Association, Chapter 7 v. Salem School District 24J, 8 PECBR 6625 (1984), has been that an employer must cease bargaining with an incumbent union when notified of the filing of a valid petition." (Emphasis supplied.)

AFSCME argues that ERB cases, including Oregon School Employees Association, Chapter 7 v. Salem School District 24J, 8 PECBR 6625 (1984), on which ERB relies, have consistently stated that the "mere filing" of a valid representation petition raises a question of representation sufficient to trigger the employer's duty to cease bargaining. See Lake Oswego School District v. Lake Oswego Education Association, 4 PECBR 2346, 2349 (1979); Municipal Employees Local 483 v. Unified Sewerage Agency, 3 PECBR 1716, 1724 (1978)....